## Facts

- A U.S. communications service provider received classified directives issued by the Attorney General and Director of National Intelligence under Section 105B of FISA, as amended by the Protect America Act of 2007.
- The directives compelled the provider to assist in acquiring foreign intelligence information concerning targets who were non-U.S. persons reasonably believed to be located outside the United States.
- The provider refused to comply and challenged the directives in the Foreign Intelligence Surveillance Court (FISC), arguing the scheme violated the Fourth Amendment because it lacked individualized warrants and was unreasonable even if an exception applied.
- The FISC upheld the directives and ordered compliance; the court denied a stay.
- The provider complied under threat of civil contempt while petitioning the Foreign Intelligence Surveillance Court of Review (FISCR) for review.

## Issues

1. Whether the Fourth Amendment requires an individualized warrant before the government may compel a provider’s assistance to conduct foreign intelligence acquisition targeting non-U.S. persons reasonably believed to be abroad under Section 105B.
2. If a warrant is not required, whether the directives and acquisition scheme were reasonable under the Fourth Amendment given incidental collection of some U.S.-person communications.

## Decision

- The FISCR affirmed the FISC order compelling the provider to comply with the directives.
- The court recognized a foreign intelligence exception to the Fourth Amendment’s warrant requirement in the circumstances presented: foreign intelligence collection directed at foreign powers or their agents reasonably believed to be outside the United States.
- Applying a totality-of-the-circumstances test, the court held the Section 105B directives and associated procedures were reasonable.
- The court held that incidental acquisition of U.S.-person communications did not render the program unconstitutional where targeting remained focused on non-U.S. persons abroad and protective procedures constrained retention and dissemination.

## Legal Principles

- The Fourth Amendment does not require a warrant for every search; warrantless searches may be permissible when reasonable in context.
- A foreign intelligence exception to the warrant requirement applies when surveillance is conducted for a bona fide foreign intelligence purpose and targets foreign powers or their agents reasonably believed to be located outside the United States.
- Fourth Amendment review of such foreign intelligence acquisition turns on reasonableness under the totality of the circumstances.
- Reasonableness may be supported by program features that constrain discretion and protect privacy interests, including targeting procedures tied to foreign location, minimization procedures limiting retention and dissemination (especially for U.S.-person information), and judicial and executive oversight.
- Incidental collection affecting U.S. persons does not, by itself, invalidate surveillance that is directed at non-U.S. targets abroad and conducted under safeguards designed to reduce intrusion.

## Conclusion

The FISCR upheld Section 105B directives compelling provider assistance and held that warrantless foreign intelligence acquisition targeting non-U.S. persons reasonably believed to be abroad may proceed without individualized warrants when structured procedures and oversight make the surveillance reasonable under the Fourth Amendment.


In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004 (FISA Ct. Rev. 2008)